Real Property

1) Joint tenancy 2) Tenancy by the entirety 3) Tenancy in Common

2 or more own property with the right of survivorship, which means if a joint tenant dies that person's share goes to other living joint tenants

Marital interest w/ right of survivorship

2+ own property w/o right of survivorship

"T-TIP" 1) Time (at the same time) 2) Title (in the same instrument) 3) Identical Interest 4) Possess (right to possess the whole)

Grantor must clearly express the right of survivorship

He has to use a straw person, because the joint tenancy must be created at the same time and in the same instrument (and other requirements must be met)

"SPAM" 1) Severance and Sale 2) Partition And 3) Mortgage

Joint tenancy destroyed for that one tenant, the new owner now has a tenancy in common. Among the 2 other joint tenants, their right of survivorship applies among then

When the contract is signed

"Equity regards as done what ought to be done" In context of joint tenancies, means that the joint tenancy is severed at the time the sale contract is signed

1) Voluntary agreement 2) Partition in Kind (Court physically divides land, if in best interests of all) 3) Forced Sale (sell house, divided proportionately)

Majority of states: Follow "Lien Theory" and mortgaging of an interest does not sever interest Minority: Will sever interest as to the share encumbered by the mortgage

By presumption for any conveyance to married partners, unless stated otherwise. (Only states that recognize it)

Nothing - only actions by both parties can destroy it

The whole

Wrongful Ouster

No

10% of the rent income ("fair share")

1) If one of the co-tenants is in exclusive possession because the other tenants left *voluntarily* --> no adverse possession. Why? No hostility 2) If the tenant wrongfully ousted the other tenants, then can get title

No right of contribution But co tenant is entitled to a credit for the increase in value caused by the improvement at partition. Co tenant is also liable for decreased in value at partition.

1) Right of contribution for *necessary and reasonable* repairs 2) Right for each co-tenant to pay their fair share of carrying costs 3) Right to have no co-tenant commit waste 4) Right to partition (divide land, forced sale)

1) Tenancy for Years 2) Periodic Tenancy 3) Tenancy at Will 4) Tenancy at Sufferance

A lease for a fixed period of time, with a known termination date at the start. No notice required to end lease. If > 1 year, must be in writing

A lease that continues for successive intervals until L or T give notice to terminate

1) Expressly "to T for year to year" 2) By Implication, in 3 ways: (a) Land is leased with no mention of duration but provisions is made for payment at set intervals (b) An oral term of years in violation the statute of frauds. Implied based on when rent is paid (c) When L elects to hold over T who has wrongfully stayed past the conclusion of the original lease (called a Holdover), period based on when rent is tendered

Written notice with at least as much time as each period of the tenancy

At the conclusion of a natural lease period. E.g. monthly periodic tenancy, tenant gives 30 days notice on Jan 15th, the tenancy ends last day in February

Through private contract

No fixed duration. "To T for as long as L or T desire"

Unless L and T expressly agreed to a tenancy at will, courts will treat the payment of regular rent as an implied periodic tenancy.

Either party can terminate at an time, but usually a reasonable demand to vacate is required

Automatically created when T has wrongfully heldover. Why? Allows L to get back rent

Until L evicts T or holds T to a new lease

1) T is liable to third parties (Tort Law) 2) T has the duty to repair 3) T has to pay rent

When T invites people over, even when L promises to make all repairs

T must maintain the premises and make ordinary repairs. T must not commit waste (voluntary, permissive, or ameliorative)

An object that was once movable chattel, but by annexation to realty it objectively shows the intent to permanently improve the realty.

He commits voluntary waste... Even if T installed it

With ownership of the land.

1) Express agreements bind 2) Absence of agreement, T may remove so long as removal "won't cause substantial harm to the premises."

At common law: T liable for all harms, including nature. Modern: T can terminate lease when property is destroyed w/o his fault

1) Evict through courts 2) Sue for rent L can collect rent until T vacates (tenancy at sufferance) Cannot engage in self-help (e.g. changing locks, removing T or T's stuff). Usually punished civally and criminally

Remember "SIR" 1) Surrender - L treats T's abandonment as an offer to surrender that L accepts. (Longer than a year? In Writing) 2) Ignore the abandonment and hold T responsible for the rent as if T was still there (minority) 3) Re-let the premises and hold T liable for any deficiency. Maj Rule: T must at least try to re-let

1) Duty to deliver possession 2) Implied covenant of quiet enjoyment 3) Implied warranty of habitability

Majority: Put T in physical possession, there is a holdover tenant, L has breached and new T can get damages Min: L must only put T in legal possession

Right to quiet use and enjoyment of land without interference from L. Applies to both residential and commercial leases

1) Actual, wrongful eviction (L excludes/evicts T) 2) Constructive Breach

Remember: SING 1) Substantial Interference: Due to L's acts or failures to Act. Permenant or Chonric 2) Notice: T must tell L and L must fail to act meaningfully 3) Good Bye: T must get out

Generally, No Exceptions 1) L must not permit a nuisance on premises 2) L must control common areas

The premises must be fit for the basic living dwelling. Basic living standard

Often gotten from building codes or court conclusion. E.g.: No heat in winter, no plumbing, no running water

Remember MR^3 M: Move out & End Lease R: Repair and Deduct (modern trend) R: Reduce Rent or withhold rent and place in escrow R: Remain in possession, pay rent, and seek damages

If T lawfully reports L for housing code violations, L is barred from penalizing T. For example: No raising rent, ending lease, harassment, etc.

Sublease = Partial transfer of interest in the property Assignment = Whole transfer of interest Allowed, unless lease says otherwise

L and T2 are in *privity of estate* but not *privity* of contract: so L and T2 are responsible for all covenants that run with the land. L and T1: No longer in privity of estate, but do have privity of contract. T1 is secondarily liable

T1: Privity of Contract, and secondarily liable under L T2: Nothing - no privity of contract or estate T3: Privity of Estate

No privity -- relationship is L --> T1 --> T2

General Rule: Let T beware (no duty to make land safe) Exceptions: (CLAPS) 1) C: common areas must be maintained; 2) L: latent defects known or should have known must be warned/fixed; 3) A: Assumption of repairs: L who voluntarily makes repairs must complete with reasonable care 4) P: Public Use: L must fix things in public leases when L should know because of the nature of the problem that T will not repair. (e.g. short-term convention hall rental)

L is liable for any defect that harm T

The grant of a non-possessory property interest that entitled its holder to some form of use or enjoyment of another's land, called the "serviant tenament"

Gives someone the right to do something on the serviant land

Entitles its holder to prevent the serviant landowner from doing something that would otherwise be permissible. Types that are allowed: (LASS) L: Light A: Air S: Support S: Stream of water from artificial flow Minority: Scenic View

1) Expressly 2) In writing 3) Signed by Grantor No natural right to a negative easement

An easement that benefits the holder in his physical use or enjoyment of his property. Requirements (it takes 2) 1) Dominant (gets benefit) 2) Serviant (gets burden)

When the holder gets some personal or pecinoary advantage from the easement. There is no benefit to his land (so no dominant tenement). E.g. Billboard on another's land

Dominant Tenement (receiving benefit): Passes automatically, regardless of whether it is mentioned in the conveyance Serviant Tenement - Passes automatically but only if there is notice

They don't pass, unless it is for a commercial purpose

"PING" 1) Prescription 2) Implication 3) Necessity 4) Grant

Oral grants permitted, but if > 1 year, must be in writing. Writing Requirements: 1) must comply with formal elements of a deed 2) Called a "deed of easement"

Also called "implied from existing use" 1) Previous use must be apparent 2) Parties expected it would survive a division 3) Because it is reasonably necessary to the dominant tenement's land use.

Landlocked setting - if grantor conveys a portion of his land with no way out except through another's land

Easement can be acquired by satisfying elements of adverse possession (COAH): Continuous Use for Statutory Period Open + Notorious Actual Use Hostile (No consent)

By the terms/condition in a grant, or if otherwise created, then by the conditions that created it

No - unilateral expansion is not permitted

"END CRAMP" 1) Estoppel 2) Necessity (expires) 3) Destruction (of serviant tenement) 4) Condemntation (of serviant estate) 5) Release 6) Abandonment 7) Merger 8) Prescription (by serviant owner)

If the easement was created by necessity, the easement ends when need ends. If the easement was *granted* by the serviant estate because of necessity, it does not automatically expire when the need ends.

When the serviant owner destroys by his own willfull conduct.

The easement holder must demonstrate abandonment by physical action (e.g. erect a fence or structure blocking access to easement)

A mere privilege to enter another's land for some specified purpose.

Created: Orally or in writing (not subject to statute of frauds) Terminated: Freely, unless estoppel bars revocation

A created a license that is freely revocable (subject to estoppel). Why not an easement? Not in writing

When the licensee has invested substantial money or labor in reasonable reliance on the license's continuation

Profit entitles its holder to enter the servient land and take from it soil or some substance from soil (e.g. timber, oil, minerals). Follows same rules as easements

Promise to do something (affirmative) or not to do something (negative) related to land. How different than an easement? Gives holder no property interest, more like contractual limitation

Look to the remedy sought If remedy = Money Damages, it's a covenant If remedy = injunction, it's a equitable servitude

1) Original promise must be in writing 2) The parties must have intended it to run with the land (courts find this easily) 3) It must Touch and Concern the Land 4) Parties must have horizontal and vertical privity

Refers to specific type of connection between the parties -- specifically succession of estate 1) Grantor/Grantee (sale of land) 2) Landlord/Tenant 3) Mortgagor/ee

Any non-hostile connection. E.g.: Contract, devise, descent. Anything but Adverse Possession

1) Writing 2) Intent 3) Touch & Concern 4) Vertical Privity (no horizontal privity required)

A promise that equity will enforce against successors, usually by injunctive relief

1) Writing 2) Intent 3) Touch & Concern 4) Notice to successors Note: No privity required to bind successors

Implied Equitable Servitude - the general or common scheme doctrine Situation: A subdivides the plot of land and sells most of the plots of with a covenant restricting to residential use. A then sells the remaining lots with no convenant. Requiments 1) Subdivider had a general scheme for residential housing, including the lots sold w/o the covenant 2) Buyer had notice of the promise in the prior deeds

1) Actual notice (meaning buyer had literal knowledge) 2) Inquiry Notice (something about the development should have tipped off buyer, e.g. all neighbors conforming to same standards) 3) Record Notice: based on publicly recorded documents (some courts: allow record notice based on deeds sold to prior residential buyers)

Changed circumstances - change must be so pervasive that the entire area has changed.

COAH 1) Continuous Use for Statutory Period 2) Open and Notorious - Same sort of possession as an owner would have under the circumstances 3) Actual possession 4) Hostile - No consent

Tacking allows one adverse possessor to tack on his time to his predecessors. Require Privity, satisified by any non-hostile connection, e.g. contract, deed, will. Ouster prevents use of taking

The statute of limitations will not run against a true owner who is afflicted with a disability AT THE START of the adverse possession (e.g. insanity, infancy, imprisonment)

1) Land Contract, which lasts until 2) Closing, where the deed becomes the operative document

1) Must be in writing and signed by the parties 2) Must describe the land 3) Must recite consideration

Buyer can seek specific performance of the land, and obtain a pro-rated discount on the purchase price

Must have 2 of the following three: 1) B takes possession 2) B pays all or part of the purchase price 3) B makes substantial improvement

Buyer bears the risk of loss, unless contract says otherwise

Buyer

1) Seller promises to provide marketable title at closing 2) Seller promises not to make any false statements of material fact

Marketable Title = unencumbered fee simple Standard = Title free from reasonable doubt, lawsuits, and threat of litigation Unmarketable if: 1) Any part is subject to adverse possession 2) servitude or mortgage (unless waived by buyer) 3) Zoning violation

1) Failure to disclose latent defects, or 2) A Material Lie or omission

Generally yes, but won't excuse seller from liability for fraud

Generally, no warranty (caveat emptor), unless the seller is a builder-vendor and sale is for a new home

"LEAD" Lawfully executed and delivered

1) In writing 2) Signed by Grantor 3) No Consideration needed 4) Description of land (not perfect, just unambiguous description)

Yes, because O's land could be discovered with research

No, not unambiguous

Standard: Did the grantor have present intent to be bound, regardless of whether the deed was actually handed over.

Physical transfer to grantee, including mail, through an agent or by a messenger

Grantee rejection

Oral condition drops, and is unenforceable/void

Grantor gives deed to escrow agent and instructions to give deed to grantee when certain conditions are met. Why useful? Permits conveyance if grantor becomes incompetent or dies

Grantor gives no covenants to buyer, no warranties; doesn't even promise he has valid title to convey

Best deed for buyer, warrants against all defects, including those due to predecessors.

Covenants of 1) Seisin (S owns land) 2) Right to Convey (S has power to transfer) 3) Against Encumbrances (no servitudes/liens)

Breached when grantee is disturbed in possession; statute of limitations begins at disturbance... 3 Covenants of: 1) quiet enjoyment (protection from other's lawful claim) 2) of warranty (promise to defend other's lawful claim of title) 3) for further assurance (promise to do what ever is necessary to protect title - usually ministerial/administrative)

Provided by statute, personal warranty only of grantor's conduct 1) Grantor promises he has not given land to anyone else 2) Promises that land is free from incumberances made by grantor

If B is a "Bona fide Purchaser" (BFP) In a Notice jurisdiction: B always wins, regardless of recording (last to receive) In a Race Notice Jurisdiction: Whoever records first wins

2 Requirements: 1) Bought property for value, AND 2) No notice that someone else bought first

Does not need to be fair market value, but must be "substantial pecuniary consideration"

1) Donees 2) Heirs 3) Devisees But may get protection under shelter rule

AIR a: Actual I: Inquiry R: Record

B is constructively on notice of: 1) Whatever an examination would show when doing a title search (e.g. validly recorded deed or reference to an unrecorded transaction) 2) Whatever an inspection of the property would show (e.g. someone else in possession)

Last BFP

The first BFP that records (2 requirements, must be a BFP and must record first)

A wins, even though he is not a BFP. Why? Although B recorded, he's not a BFP because he was on record notice of the gift to A

One who takes from a BFP will prevail against any entity that the transferor-BFP would have prevalid against

C wins, because B would have won (Shelter rule)

O-->A, no record, then A-->B, properly recorded. Wild because there's no clear chain between O to B (O to A was not recorded). Broken deeds cannot give record notice

Prevents a grantor, who conveys realty he has no interest in, from denying the validity of the conveyance if he later acquires valid title. X --> A, where X doesn't actually own title. If X acquires Title, A is rightful owner

1) Note 2) Mortgage Deed 3) Deed of Trust 4) Security Interest in Land

A mortgage is implied when 2 parties intend the transaction to be a mortgage, but rather than executing the mortgage O hand the creditor the deed

The new buyer owns the property and O can sue creditor for fraud and sale proceeds

Debtor/Mortgagor has title right to possess, unless foreclosure Creditor/Mortgagee has a lien

1) Endorsing the note and delivering it to transferee, or 2) Executing an assignment document

A holder in due course is the person who receives a mortgage transfered by endorsement and delivery. This holder takes the mortgage free from personal defenses of the mortgagor.

Lack of consideration Fraud in inducement Unconscionable Waiver Estoppel

"MAD FIFI^4" M: Material A: Alternation D: Duress FI F: Fraud in the Factum (lie about instrument I: Incapacity I: Illegality I: Infancy I: Insolvency

1) Note must be negotiable, made payable to mortgagee 2) The *original* must be endorsed and signed by mortgagee 3) Original must be delivered 4) Mortgagee must take it in good-faith, w/o notice of illegality, AND 5) transferee must have had paid value for it (more than nominal)

A mortgagee is treated just as a buyer for recording purposes, same rules for race-notice and notice statutes

If B assumed the mortgage, then B is primarily liable and O is secondarily liable. If B takes subject to the mortgage, then B is not liable, O is liable, but mortgage runs with the land and mortgagee can still foreclose

Forced Sale Money from sales will go to forclosing mortgagee and all JUNIOR creditors. If that's not enough, JUNIOR creditors can pursue owner. Senior creditor mortgages run with the land and owner is no longer liable

First in time, first in right. EXCEPT Purchase Money Mortgagee gets super priority

The person who gives money to O so O can buy the property

This is C gives $$ to O taking an interest in all property "whether now owned or hereafter acquired." Purchase Money Mortgagee takes first

This is an agreement between a senior creditor and junior credit for a junior creditor to take first

Redemption in Equity: Owner may redeem any time before foreclosure for total amount due, including acceleration clause. Statutory Redemption (50% states): Owner can redeem after foreclosure (6mo-1yr) up to amount of sale price Non-waivable

only if landowner was negligent

Only if the harmed land owner can show that the improved land would have collapsed even in its natural state

1) Riparian Doctrine: Owners of land bordering water are entitled to reasonable use 2) Appropriation Doctrine: Any land owner can acquire water rights from state. First in use/first in right, for any beneficial use

Also called perculating water, which is water beneath the surface not confined to a known channel. Any reasonable, non-wasteful use is okay.

Common Enemy Rule: a land owner may change drainage or make changes to combat flow of surface water, regardless of effect on neighbors. Statutory change: can't cause undue harm to others

Invasion of land by tangible physical object

Action for ejectment

Private Nuisance = Substantial and unreasonable interference with another's enjoyment of land. E.g.: Odors, noise

For Public Use Provide Just Compensation

When the regulation economically wipes out the investment

1) Undue hardship for seeker 2) Won't decrease neighbor's property value

Can't require that the owner fix it all at once, without just compensation, otherwise violates taking clause

When government requires person seeking permits to do something else.

Must be reasonably related in nature and scope to the impact of the proposed development